Markisic v AEA Ethnic Publishers Pty Ltd & Ors

[2006] NSWCA 241

New South Wales

Court of Appeal

CITATION:	Markisic v AEA Ethnic Publishers Pty Ltd & Ors [2006] NSWCA 241
HEARING DATE(S):	28 August 2006
JUDGMENT DATE:	28 August 2006
JUDGMENT OF:	Giles JA
EX TEMPORE JUDGMENT DATE:	08/28/2006
DECISION:	Application to set aside the Registrar's decision dismissed.
CATCHWORDS:	Leave to unrepresented litigant to issue subpoenas - appeal from dismissal of defamation proceedings - desire to rely on further evidence on appeal - application for leave to issue subpoenas - Registrar refused leave - most subpoenas too wide and fishing expedition - as to all little prospect of use of subpoenaed material in appeal - leave correctly refused.
PARTIES:	Dragan Markisic - Applicant (Ex parte)
FILE NUMBER(S):	CA CA 41005/05
COUNSEL:	Applicant in person

LOWER COURT JUDICIAL OFFICER: Registrar Schell

CA 41005/05

GILES JA

Monday 28 August 2006

MARKISIC v AEA ETHNIC PUBLISHERS PTY LTD & ORS

Judgment

1 HIS HONOUR: This is an application to set aside the decision of the Registrar, who declined to grant leave pursuant to the Rule 7.3 of the Uniform Civil Procedure Rules to issue a number of subpoenas.

2 The applicant, Mr Dragan Markisic, is the appellant in proceedings in this Court listed for hearing on 13 November 2006. He appeals from a decision of Simpson J dismissing proceedings brought by him in which he alleged that he had been defamed. A jury found defamatory imputations, and her Honour conducted the further trial following the jury trial.

3 Prominent in the applicant's submission on appeal will be the course of the trial before Simpson J. Her Honour records in her judgment that early on the third day of the trial the applicant applied for an adjournment on the basis, amongst other things, of ill health, which application her Honour refused. According to her Honour's reasons, when she invited the applicant to give or call evidence he declared that he would no longer participate and would leave the Court. Her Honour said that if he did so the case would proceed in his absence. Still according to her Honour's reasons, she allowed the applicant half an hour to consider his position; the applicant again indicated his intention not to participate and to leave the Court, and again asked to be excused; and she told him that he was free to go if he wished but that the proceeding would proceed in his absence. That is what occurred.

4 This course of the trial is not entirely as it was recounted to me by the applicant this morning, but it can readily enough be understood that the applicant's grounds of appeal include that her Honour was in error in proceeding with the trial and not granting him an adjournment. That has some significance for the present application. I will return to it after briefly explaining what occurred when the Registrar declined leave to issue the subpoenas.

5 The application was made to the Registrar ex parte, supported by an affidavit of the applicant sworn on 1 August 2006. According to the evidence before me, the applicant took copies of the subpoenas and his affidavit to the Duty Registrar, and those materials were then taken to the Registrar. After a short time the Duty Registrar returned, saying that the Registrar refused to give leave to issue the subpoenas, and there was endorsed on the front of the affidavit "Leave to issue subpoenas refused" with the Registrar's signature and the date.

6 This application to set aside the Registrar's decision has also been made ex parte. It is not necessary to decide whether or not notice should have been given to the parties affected.

7 Returning to the course of the proceeding before Simpson J, if her Honour was in error in proceeding with the trial and refusing an adjournment then the result will almost inevitably be an order for a new trial. The Court of Appeal will not itself undertake a trial in place of that which, on the assumption I have just made, would have taken place had the applicant participated. There does not seem, therefore, to be a strong case for fresh evidence being put before the Court of Appeal in aid of which subpoenas may be issued. It is apparent that the applicant does not see the matter this way. He seems to regard the appeal as the occasion on which he is to present the case which he says he would have presented before Simpson J, or perhaps even an enhanced case depending upon the state of preparation for the trial. In this he is in error.

8 Against this background I go to the subpoenas. They fall into two classes.

9 There are first a number of subpoenas addressed to the Commissioner of the Australian Federal Police, the Secretary of the Commonwealth Department for Immigration, the Secretary of the Commonwealth Attorney-General's Department, the Secretary of the Commonwealth Department for Foreign Affairs, the Archbishop of the Roman Catholic Church for the Archdiocese of Sydney, the Director-General for the Department of Community Services of New South Wales, the Director-General of the Attorney-General's Department of New South Wales and a Mr Blajer. With one qualification, they take the same form of requiring the production of "all records in the possession of" the relevant entity –

“which relate to the following persons:

(a) Dragan Markisic
(b) Katarina Markisic
(c) Elena Markisic."

10 The qualification is that one goes on to identify "Particular documents required to be produced"; but the global requirement remains.

11 The defamation proceedings arose in connection with the return to Macedonia of the applicant's daughter Elena. The imputations found by the jury were to the effect that the applicant had physically abused his wife; that he had committed the criminal offence of kidnapping by removing his daughter from Macedonia to Australia; that the applicant is a bad parent in that he selfishly removed his daughter from her mother's custody; and that the applicant dishonestly obtained a passport for his daughter without the knowledge and consent of her mother when the plaintiff well knew it was necessary to obtain the mother's consent.

12 Involved in the return of the applicant’s daughter were an application for her return made through Government departments, enforced in part through the Australian Federal Police, and a period for which the applicant’s daughter was in the custody of the Roman Catholic Church. This explains the identity of most of the series of entities to which I have referred to which the applicant wishes to issue subpoenas, but it does not to my mind explain or warrant the issue of subpoenas in the very broad terms earlier set out. This is so even if the question were whether the subpoenas should be issued in relation to the trial. It is not clear to me that there is any real prospect of the Court of Appeal receiving significant further evidence, even if subpoenas were more carefully crafted with a view to supporting particular submissions properly able to be made in the forthcoming appeal.

13 I must balance the very great width of these subpoenas and the burden which would be imposed upon the entities subpoenaed against the possible use of subpoenaed material by the applicant in the appeal, and in my opinion, the balance is overwhelmingly against leave to issue the subpoenas. Indeed, in my opinion, the subpoenas are aptly described by the traditional phrase of a fishing expedition, and I note that at one point in his submissions the applicant said that there could be material in the possession of the various entities and, if there were, he would like to have it. I do not hold those words against him; but it seems to me that they are a realistic reflection of the position. Subpoenas in the width I have referred to are just fishing for material which could have been relevant at the trial; but of course, I am not considering even relevance at a trial, but relevance in the proposed appeal.

14 The two remaining subpoenas are in a slightly different category. Their purpose is to obtain evidence of the geographic and numerical distribution of the publications in which the defamatory material appeared. According to the applicant’s affidavit, and as I understand it after he ceased to participate in the trial, evidence was given by the defendants of the distribution of one of the publications, and the applicant says in the affidavit that he intends to present at the appeal the fact that that evidence was false.

15 There is not the difficulty of impermissible width in the case of these two subpoenas. The difficulty is that, if the applicant makes good grounds of appeal to the effect that Simpson J was in error in proceeding with the trial, he will have a new trial; but if he does not, then he has had but has not taken advantage of the opportunity to present his own evidence of the geographic and numerical distribution of the publications. I cannot see that there is any real prospect of his embarking upon that afresh in the appeal. Again, I seek to balance the possible use of the subpoenaed material in the appeal against the imposition upon the entities subpoenaed, and in my judgment the balance is against the issue of the subpoenas.

16 Accordingly, in my opinion, the decision of the Registrar to refuse leave to issue the subpoenas was correct. The application to set aside the Registrar’s decision is dismissed.

oOo